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U.S. NSA domestic phone spying program illegal: appeals court

reuters.com

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Re: U.S. NSA domestic phone spying program illegal: appeals court

#11

Post by nolok »

delinka wrote: post #5
SoftwareMaven wrote: post #2

Can somebody explain how a constitutional challenge could be dismissed under the pretext of "it was authorized by Congress"? Isn't the whole point of a constitutional challenge to address things illegal things authorized by the government?

Seems to me the lawyers would attempt to throw noodles at the wall until something sticks. The "authorized by Congress" noodle stuck to the wall of the lower court. A higher court told them they needed to have cleaned their walls first. Whether the lower court should have accepted the "authorized by Congress" argument is another matter, but the reason might be that the judge agreed. Or maybe he didn't feel convinced…

Or, given the case at hand, they had some things on him he didn't want "leaked". Might sound paranoid, but that is one of the core reasons why such systems are so bad, right ?

Re: U.S. NSA domestic phone spying program illegal: appeals court

#12

Post by kylelibra »

Here's the actual decision: http://pdfserver.amlaw.com/nlj/NSA_ca2_20150507.pdf

Concurrence by Judge Sack: https://www.aclu.org/sites/default/files/field_document/clap...

Here's what struck me as the most interesting comment from Sack - "Considering the issue of advocacy in the context of deliberations involving alleged state secrets, and, more broadly, the ʺleakʺ by Edward Snowden that led to this litigation, calls to mind the disclosures by Daniel Ellsberg that gave rise to the legendary ʺPentagon Papersʺ litigation."

Re: U.S. NSA domestic phone spying program illegal: appeals court

#13

Post by diafygi »

The actual judgment: http://pdfserver.amlaw.com/nlj/NSA_ca2_20150507.pdf

From the ruling:

> Because we find that the program exceeds the scope of what Congress has authorized, we vacate the decision below dismissing the complaint without reaching appellants’ constitutional arguments.

It appears that the government is starting to lose the ability to always dismiss constitutional rights abused on "state secrets" grounds. Which is great! Finally, we can actually start to hear the real legal justifications for these mass surveillance programs and watch them start to crumble when they are put forward in a adversarial court. However, organizations like the ACLU and the EFF need funding to be able to dismantle these illegal programs. I recommend signing up for a monthly recurring donation of $19.84.

https://www.aclu.org/donate/

Also, this will give significant weight to the Fight 215 coalition (https://fight215.org), which this ruling is directly related to.

Re: U.S. NSA domestic phone spying program illegal: appeals court

#14

Post by mikecb »

SoftwareMaven wrote: post #2

Can somebody explain how a constitutional challenge could be dismissed under the pretext of "it was authorized by Congress"? Isn't the whole point of a constitutional challenge to address things illegal things authorized by the government?

The constitutional challenge was dismissed because it was found to be constitutional under existing jurisprudence. See discussion in the lower court's memorandum opinion and order starting on the bottom of page 38[1].

Smith v. Maryland, abridged, said that we have no privacy interest in the metadata sent to a third party in order to complete a call. In the words of 4th amendment jurisprudence, we don't have a reasonable expectation of privacy in items we voluntarily disclose to third parties. As such, the collection of this information by the government is not a search for 4th amendment purposes, and therefore falls entirely outside 4th amendment protection.

THE ACLU's constitutional argument is a novel one that has not yet become binding precedent on lower courts, call the mosaic theory, though it is gaining ground in some recent Supreme Court decisions. See Orin Kerr's paper on this theory of a search.[2]

[1] (pdf warning) https://www.aclu.org/files/assets/order_granting_governments...

[2](pdf warning) http://repository.law.umich.edu/cgi/viewcontent.cgi?article=...

Re: U.S. NSA domestic phone spying program illegal: appeals court

#15

Post by kazazes »

rev_bird wrote: post #8

Is it weird that anti-surveillance court rulings don't really make me feel better? If they'd not only lie to Congress, but ACTUALLY SPY ON Congress, what is a judge going to do to stop them?

I have faith in the power of the judiciary, still. While putting illegal surveillance programs to bed may feel like a half century long game of wack-a-mole, precedent still has power in American courts.

Re: U.S. NSA domestic phone spying program illegal: appeals court

#16

Post by cryoshon »

rev_bird wrote: post #8

Is it weird that anti-surveillance court rulings don't really make me feel better? If they'd not only lie to Congress, but ACTUALLY SPY ON Congress, what is a judge going to do to stop them?

Eh, cheer up. Sure, the intelligence agencies will do their best to lie and hide from Congress, but every time they do so, it is one step closer to the hammer coming down onto them and their funding being slashed.

Re: U.S. NSA domestic phone spying program illegal: appeals court

#17

Post by lallysingh »

rev_bird wrote: post #8

Is it weird that anti-surveillance court rulings don't really make me feel better? If they'd not only lie to Congress, but ACTUALLY SPY ON Congress, what is a judge going to do to stop them?

When there's enough to prosecute, refer the case to DOJ for charging people with criminal violations. NSA officials in the past have been mirandized (https://firstlook.org/theintercept/2014/10/02/the-nsa-and-me...) in expectation of criminal charges. But until the state secrets veil gets well pierced, it's unlikely that a prosecution can gather and show enough evidence to convict.

Re: U.S. NSA domestic phone spying program illegal: appeals court

#18

Post by MrZongle2 »

cryoshon wrote: post #16
rev_bird wrote: post #8

Is it weird that anti-surveillance court rulings don't really make me feel better? If they'd not only lie to Congress, but ACTUALLY SPY ON Congress, what is a judge going to do to stop them?

Eh, cheer up. Sure, the intelligence agencies will do their best to lie and hide from Congress, but every time they do so, it is one step closer to the hammer coming down onto them and their funding being slashed.

Sorry to add to the downer chorus, but I think that would require a majority in both houses to exhibit some integrity and a desire to wield Congressional power.

I don't see that happening. Obstructionism, pandering, lobbying and abdication of responsibility? Oh, we've got that in spades.

Re: U.S. NSA domestic phone spying program illegal: appeals court

#19

Post by maze-le »

cryoshon wrote: post #16
rev_bird wrote: post #8

Is it weird that anti-surveillance court rulings don't really make me feel better? If they'd not only lie to Congress, but ACTUALLY SPY ON Congress, what is a judge going to do to stop them?

Eh, cheer up. Sure, the intelligence agencies will do their best to lie and hide from Congress, but every time they do so, it is one step closer to the hammer coming down onto them and their funding being slashed.

I wouldn't be so optimistic. A bit of fearmongering here and there. Some idiots from the middle east (or wherever) spreading fear and terror... et viola: New justification for more funds.

Re: U.S. NSA domestic phone spying program illegal: appeals court

#20

Post by ksherlock »

SoftwareMaven wrote: post #2

Can somebody explain how a constitutional challenge could be dismissed under the pretext of "it was authorized by Congress"? Isn't the whole point of a constitutional challenge to address things illegal things authorized by the government?

That's why it's going back to be reviewed but it's not why it was dismissed in the first place.

The government asked for dismissal because

1: The ACLU lacks standing (denied) 2: Sovereign Immunity (upheld but reversed) 3: Bulk collection was authorized by congress (upheld but reversed) 4: bulk collection does not violate 4th or 1st amendments (upheld)

tl;dr: Court: Authorized by congress and constitutional. Appeals Court: Not authorized by congress, therefore we can ignore any constitutional aspects of it.

https://www.aclu.org/files/assets/order_granting_governments...

http://pdfserver.amlaw.com/nlj/NSA_ca2_20150507.pdf

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